Gary H. Luftspring

The Court of Appeal heard motions to quash an appeal from a trial judge's order approving a sale process for a family business.

The court found the approval order to be interlocutory, serving as a mechanism to implement remedies from the trial judgment, and thus not determining substantive issues.

The correct appeal route for such an order is to the Divisional Court with leave.

Consequently, the motions to quash the appeal were allowed, and the appellants were granted an extension to seek leave to appeal to the Divisional Court.

This costs endorsement followed grouped appeals concerning a wind-up order.

The appeals brought by Mark Libfeld and Corey Libfeld regarding the exclusion of the Shanontown transaction were unsuccessful.

The appeals brought by Jay Libfeld and Sheldon Libfeld concerning a procedural provision in the wind-up order were successful.

Consequently, Jay Libfeld and Sheldon Libfeld were entitled to costs from Mark Libfeld and Corey Libfeld.

The court found the amounts sought by Jay and Sheldon to be excessive due to duplication of materials and disproportionality to the necessary work for the appeals, and ordered a reduced costs schedule.

Orthoarm Inc. moved for summary judgment to dismiss GAC International, LLC's action, arguing GAC was estopped by conduct from claiming a reduced royalty rate.

GAC's action sought a declaration that royalties should be 5% instead of 10% after another party began selling a bracket using the same patent.

The court dismissed Orthoarm's motion, finding genuine issues of material fact, including GAC's knowledge of the patent use, Orthoarm's detrimental reliance, and the feasibility of Orthoarm licensing the patent to other manufacturers.

The court determined that a trial was required for a fair and just determination.

The respondent bank sought indemnity under an insurance policy for losses arising from a Ponzi scheme operated by a customer.

The bank obtained partial summary judgment on the interpretation of the "direct financial loss" element of the fidelity coverage section.

The appellants (insurers) appealed, arguing the motion judge erred in granting partial summary judgment on a constituent element of a claim rather than on the claim itself, failed to interpret the policy as a whole, adopted a theory of liability not advanced by the parties, and misconstrued the relief sought by the appellants.

The Court of Appeal allowed the appeal, set aside the order, and directed the action to proceed to trial.

The Bank of Nova Scotia Trust Company, as Estate Trustee During Litigation (ETDL) of the Estate of Mary Kathleen Kuklis, applied for directions regarding the sale of real property, disposition of personal property, and production of documents from Martin Kuklis, a former attorney for property.

Following a settlement of the application, the issue of costs remained.

The court found Martin Kuklis's conduct, including his failure to pass accounts and self-interested opposition, warranted an award of substantial indemnity costs against him personally, payable first from his share of the Estate.

Karla Anne Shawn Kuklis, Shawna Ellis, and Wesley Kuklis were not held personally responsible for costs, and their request for costs was dismissed.

The ETDL was awarded full indemnity costs, with the difference between full and substantial indemnity paid from the Estate.

This is a costs endorsement following several motions in complex insurance litigation between TD Bank and its fidelity insurers, primarily concerning a successful partial summary judgment motion by TD Bank.

The court addressed the administrative issue of simplifying the style of cause and then considered the principles for awarding costs, emphasizing the "culture shift" towards efficient litigation.

The court confirmed costs in the cause for an earlier production motion and awarded TD Bank $330,000 in all-inclusive costs for the motion for directions and the partial summary judgment motion, to be paid jointly and severally by the defendant insurers, allocated pro rata to their policy exposure.

The defendants, a consortium of insurers, brought a motion to clarify TD Bank's discovery obligations regarding documents subject to solicitor-client, litigation, and settlement/mediation privilege.

TD Bank was seeking indemnity under fidelity policies for amounts paid to settle 19 underlying lawsuits related to a Ponzi scheme.

The court ruled that TD Bank had not implicitly waived solicitor-client privilege through its pleadings.

It also found that litigation privilege for documents created for the underlying litigation was not lost upon settlement, given the close connection to the current coverage dispute.

However, the court determined that TD Bank could not assert settlement privilege over documents related to the underlying settlements, as these were crucial for the insurers to assess the reasonableness and allocation of damages for coverage purposes.

The plaintiff, an Ontario corporation, sued the defendant, a Wisconsin corporation, in Ontario for unpaid royalty payments under a licence agreement.

The defendant brought a motion to dismiss or stay the action, arguing the Ontario court lacked jurisdiction simpliciter or was forum non conveniens.

The court found it had jurisdiction because the defendant carried on business in Ontario through its employees and direct sales.

The court declined to stay the action, finding the defendant failed to establish that Wisconsin was clearly the more appropriate forum.

The plaintiff, a senior investment banker, alleged he was constructively dismissed when his employer failed to promote him to a promised Team Leader position by a fixed date.

The court found that the employer had not breached the employment contract, as it was taking reasonable steps to implement the promotion within a reasonable timeframe and had paid the plaintiff significant increased compensation.

The court concluded the plaintiff voluntarily resigned to join a competitor start-up.

The constructive dismissal claim was dismissed, but the plaintiff was awarded minor amounts for unpaid cash incentive pay and a declared dividend.

Following certification of a national class proceeding and dismissal of defendants’ summary judgment motions, the court determined costs arising from the certification and related motions.

The court applied Rule 57 of the Rules of Civil Procedure and principles governing costs in class proceedings, including fairness, reasonable expectations of the parties, and the access to justice objectives of the Class Proceedings Act, 1992.

The litigation involved extensive evidence, numerous defendants, and complex factual and legal issues affecting approximately 10,000 class members with alleged losses approaching $150 million.

The court rejected requests for substantial indemnity costs and declined to refer costs to formal assessment, instead fixing costs directly.

Significant partial indemnity costs and disbursements were awarded to the plaintiff, apportioned among the defendant groups.

The plaintiff brought a motion to certify a class action against the promoters, lawyers, and other entities involved in a charitable donation tax shelter scheme called the Donations for Canada Gift Program.

The Canada Revenue Agency had disallowed the charitable tax credits claimed by the participants, finding they lacked donative intent.

The defendants brought motions for summary judgment.

The court certified the action as a class proceeding, finding that the pleadings disclosed causes of action in negligence, negligent misrepresentation, fraud, conspiracy, breach of contract, and unjust enrichment.

The court dismissed the defendants' motions for summary judgment, concluding that a trial was required to fully appreciate the evidence and resolve the complex factual issues, including whether the contracts were vitiated by fraud.